Dyer v. Leach

McFarland, J. Action of ejectment to recover a certain tract of land. Judgment went for plaintiff, and defendants appeal.

George Leach, being the owner of the land in question, executed a deed of trust of the same to E. Conway, trustee. The object of the trust was to secure a promissory note for $3,358, made by Leach to the Riverside Banking Company, as wrell as certain other moneys. It was provided in the deed that if the money should not be paid when due, the trustee should sell the land, after notice, and in the manner provided therein, and execute a deed to the purchaser. It also provides that there shall be a trustee as successor of said Conway, in case of the death, resignation, or removal of the latter; but it does not provide for the manner in which such successor shall be appointed. Afterwards, said Conway died; and the money secured by the trust being due and unpaid, said banking company made written application to the superior court for the appointment of a trustee, and the court appointed, as such trustee, H. C. Hibbard. Hibbard proceeded under the trust, and sold and conveyed the land to one Rosenthal, who conveyed to plaintiff, Dyer. The defendants, other than Leach, are persons who claim parts of the land under him.

It is not contended by appellants that Hibbard did not sell the land in accordance with the deed of trust, or that he in any way violated it. It is contended, however, that all proceedings by him, and his sale of the land, were invalid, because his appointment was made by the superior court without notice to the trustor, [193]Leach, or his grantees. It does not appear that any injustice has been, done, and the point seems to be entirely technical.

As the attack made here upon the order of the court appointing Hibbard trustee is collateral, it cannot be successful unless such order is absolutely void; but we do not think it void. The current of authorities is to the point that in such a case it is discretionary with the court what, if any, notice shall be given. Our code requires no notice. Section 2287 of the Civil Code provides that “ the superior court may appoint a trustee whenever there is a vacancy, and the declaration of trust does not provide a practical method of appointment.” Section 2251 provides that “ the mutual consent of a trustor and trustee creates a trust of which the beneficiary may take advantage at any time prior to its rescission.” Section 2252 provides that “when a trustee is appointed by a court, .... such court .... is the trustor, within the meaning of the last section.” These are the only provisions applicable to the question to which our attention has been called. The theory of the law is, that upon the death of the trustee the trust vests in the court, and, in the absence of a statutory provision, notice is not necessary to confer jurisdiction. In Milbank v. Crane, 25 How. Pr. 193, it is said that the jurisdiction in such a case is “a quasi jurisdiction in rem, a power over the trust, and is not acquired by the service of process upon the cestui que trust or other person interested in the trust fund or its preservation. It is undoubtedly proper and usual in most cases to call those more immediately interested before the court, that they may be heard in the appointment of a new trustee. But this is in the discretion of the court.....This being so, the appointment of the new trustee is valid, even though it should be thought to be irregular, or even improvident or indiscreet, to make the appointment without formal notice to and summons to those interested.” To the same point are the cases-of Hawley v. Ross, 7 Paige, 103, and In re Robinson, 10 N. Y. Rep. 261. (We have